Opinion
February 2, 1990
Appeal from the Supreme Court, Monroe County, Cornelius, J.
Present — Denman, J.P., Boomer, Green, Lawton and Davis, JJ.
Order and judgment unanimously affirmed with costs. Memorandum: Plaintiff is the former owner of the Hoyt-Potter House, a designated landmark in Rochester's Third Ward Historic District. Beginning in 1970, plaintiff unsuccessfully sought defendants' permission to demolish the 150-year-old building, which had sustained significant damage from fire, weather and vandalism during plaintiff's ownership. Plaintiff brought this action seeking a declaration that the regulation of his property constituted an unconstitutional taking and that he may demolish the building without further restriction by defendants, together with damages for the alleged temporary taking of his property since 1970. The trial court determined that plaintiff had failed to establish an unconstitutional taking and dismissed the complaint. We affirm.
Plaintiff failed to establish that the city's landmark restrictions either deprived him of "economically viable use of his property" or failed to "substantially advance legitimate State interests" (Seawall Assocs. v City of New York, 74 N.Y.2d 92, 107, cert denied sub nom. Wilkerson v Seawall Assocs., ___ US ___, 110 S Ct 500). Plaintiff did not present "dollars and cents" proof that the property would not be capable of producing a reasonable return under the landmark regulations (see, de St. Aubin v Flacke, 68 N.Y.2d 66, 77; Spears v Berle, 48 N.Y.2d 254, 263), but relied instead on evidence that the parcel would have been more profitable as a public parking lot, which is not a permitted use under the city's zoning ordinance (Code of City of Rochester § 115-78). Even assuming that plaintiff had obtained a variance for his proposed use, he is not constitutionally entitled to the most beneficial use of his property (see, Andrus v Allard, 444 U.S. 51, 66; Matter of Society for Ethical Culture v Spatt, 51 N.Y.2d 449, 456, rearg dismissed 52 N.Y.2d 1073).
There is no question that the city's landmark regulations, which restricted plaintiff's right to demolish the Hoyt-Potter House, substantially advance the city's legitimate interest in preserving historically and architecturally significant buildings (see, Penn Cent. Transp. Co. v New York City, 438 U.S. 104, 134, reh denied 439 U.S. 883). Nothing in the record suggests that the designation of the Hoyt-Potter House as a landmark was unreasonable, and the defendants' decision to protect it should therefore be upheld (Matter of Society for Ethical Culture v Spatt, supra, at 454).
In light of the city's subsequent condemnation of the property, plaintiff's challenge to that portion of the order denying his request for permission to demolish the building is moot (see, Lubelle v City of Rochester, 145 A.D.2d 954, lv denied 74 N.Y.2d 601).